Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - China - Hong Kong Special Administrative Region (Ratification: 1997)

The Committee notes the detailed information supplied by the Government in its report, as well as the observations of the Trades Union Congress (TUC) and the reply of the Government thereto. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1553 (281st Report of the Committee, approved by the Governing Body at its 252nd Session (February-March 1992)).

1. Article 1 of the Convention. The Committee notes the TUC's statement that although section 21 of the Employment Ordinance prohibits any act of anti-union discrimination, the burden of proof is placed on the victim who has to establish that the only reason for discrimination was the exercise of trade union rights. The Government, for its part, replies that violation of the anti-union discrimination provisions under the Employment Ordinance is a criminal offence, the maximum penalty for which is a fine of $20,000. Moreover, the burden of proof in a criminal case rests with the prosecution, and not on the victim, although the success of a prosecution case would depend very much on whether there is sufficient evidence. In reply to the TUC's argument that there are no remedial measures which could benefit the victim of anti-union discrimination - since no compensation is required from the employer to remedy the loss to the victim, nor can reinstatement be imposed by the Court - the Government states that a recent review of the labour relations system in Hong Kong has recommended that an employee dismissed on grounds of union membership or activities may make a claim for compensation to the Labour Tribunal, and the burden of proving that the dismissal is not discriminatory would rest with the employer. An employer failing to discharge the burden of proof will be required to pay compensation to the employee, the amount of which would be decided by the court. Various parties including the Labour Advisory Board, trade unions, as well as other employee and employer organizations, are presently being consulted on the proposal.

The Committee notes, as it has in previous direct requests, that protection of workers against anti-union discrimination in respect of their employment is provided for under sections 21B and 21C of the Employment Ordinance. However, as regards measures for compensating a unionized worker for prejudice suffered, the Committee considers that the reintegration and reinstatement in his post of a worker who has been dismissed or discriminated against for anti-union reasons constitute the most appropriate means of redressing acts of anti-union discrimination. Legislation which includes protective provisions, but which allows the employer in practice to terminate the employment of a worker on condition that he pays the compensation provided for by law in all cases of unjustified dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 220).

The Committee trusts that the above-mentioned review of the labour relations system in Hong Kong will take into consideration the principle enunciated above and requests the Government to keep it informed of any measures it has taken or envisaged in this respect.

[The Government is asked to report in detail for the period ending 30 June 1994.]